Sep 25 Explaining the Lack of An Executive Order on Don't Ask, Don't Tell

A legal analysis released in 2009 by the Palm Center at the University of California at Santa Barbara makes it clear that the President has the power to suspend Don't Ask, Don't Tell as long as our reserve troops are involuntarily serving on active duty. Whether this is due to the President looking to avoid a controversy or a fight with the military, or whether this is due to the President believing that a temporary executive order blocking implementation (which would last only as long as reserve troops are serving in active duty) would diminish the importance of a permanent repeal of the policy, I cannot help but believe that this nation's gay defenders have waited long enough for their chance to serve openly. I not only strongly urge the President to issue such an executive order, but I also want to add my voice to a letter by 69 members of Congress urging the President and the Justice Department to not appeal a decision by a federal judge that Don't Ask, Don't Tell is unconstitutional.

That having been said, I think that in the face of some very legitimate disappointments from the LGBT community, of which I am a part, the President's strategy warrants a more thoughtful analysis than simple scorn. Before that, however, one thing needs to be made clear here. President Obama and the Democrats are not the impediment to a full repeal of DADT. Republicans are. As I pointed out, on Tuesday's vote, we had the support of 57 out of 59 Senate Democrats to move ahead on repealing DADT as part of the defense appropriations bill. The Republicans - even those ostensibly in favor of a repeal - unanimously filibustered the bill. In May, the House passed repeal with the support of 220 Democrats and only 9 Republicans.
Still the question remains about why the President won't simply issue an executive order and put a moratorium on the policy. Keep in mind that I plan not to offer a defense of this strategy but an explanation. The given here is that the President wants to end the policy of discriminating against gay servicemembers. But the risk in issuing an executive order is that detractors of repeal will get a two-fer: they will accuse the President of running a dictatorship in the military, afoul of laws duly enacted by Congress, and then they will turn around and claim that there is no need or urgency for Congress to repeal the law since it has been halted anyway. The latter is the more substantive argument, and it could actually hurt efforts to repeal by taking the urgency off the issue.

The military is an issue every Democratic president has to trade carefully with. We all wish we did not live in such a world, but we do. President Obama is especially under assault by neo-conservatives and military policy hawks for not cow-towing to the Pentagon and military generals. He has thus far done well in asserting his authority as Commander in Chief, dismissing two war generals (McChrystal and McKiernan). Groups from the right are taking every opportunity to perpetuate the myth that Obama does not support the military, and I can understand the President is hard-pressed to hand them more ammunition. The way the president has calculated it, and I am inclined to agree with this calculation - just as achieving health care reform took input and the coming together of a lot of interests -- if only to ensure that we wouldn't have to fight all the interests at the same time resulting in a losing outcome -- the successful repeal of Don't Ask, Don't Tell, too, will need to take account of relevant interests: namely, the military.

That is the reason why we have the ongoing Pentagon Review on how to repeal this policy (note: as Rachel Maddow explains, the review is about how to repeal the policy, not about whether to do so). Input from the military on the repeal gives the President both political capital and substantive legitimacy of having done it the right way. Giving the stakeholders - in the military - a voice (but not a veto) in this change can lead to a successful permanent repeal without resistance from the institutional military.

If that is the case, the idea of halting DADT while Congress is in the process of authorizing repeal and the Pentagon is the middle of assessing how to best implement that repeal would seem to contradict that purpose of giving the Pentagon stakeholders a voice. If it's halted right away, what is the point of a Pentagon study into the implementation of such a repeal? If the President is going to be ending it with the stroke of a pen anyway, the Pentagon might ask, why did he ask us to study the best way to get rid of it?

Of course, many activists as well as former members of the military (as well as current ones) have argued for precisely that reason that a review is unnecessary. The military is an institution that takes orders from the president and follows it. That's how it's supposed to be, and that should be the end of the debate. I can certainly appreciate that point of view. No progressive can argue that halting the policy would not be the right thing to do, and as progressives we believe that justice delayed is justice denied to members of our military who still serve in silence. But the question must also be asked that if such an order is counter-productive and in the end results in no Congressional (i.e. permanent) repeal of the policy thanks to resistance from both inside and outside the military, will such an order have been worth it? Should our goal not be a full repeal of the law instead of just halting its implementation as long as reserves are serving on active duty?

There is of course an argument made that halting implementation will prove the critics of repeal wrong once and for all, as the units with openly gay soldiers suffer no adverse effects, helping public support for repeal go higher. This argument, while valid, misses the point that there is no logical connection between the public support for repeal and the demagoguery of Congressional Republicans. Nearly 80% of Americans support a repeal right now, and the Republicans in the Senate are still filibustering the bill.

It is still my belief that Congress will finish work on the defense appropriations bill by the end of the year -- in the lame duck session if need be -- and they will in the final bill end Don't Ask, Don't Tell, and if they do not, the Pentagon will have completed its study, freeing the president to issue an executive order halting discharges under it. The fight for repeal is not yet over. We will keep on fighting until it's done and until we win.

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